The Constitution of the Republic of Hawaii

YALE LAW JOURNAL VOL. IV DECEMBER, 1894 NO. 2 THE CONSTITUTION OF THE REPUBLIC OF HAWAII. Monarchy in Hawaii was abrogated on the 17th January, 1893, and a Provisional Government was established by a Proclamation which, in its closing Article, provided that "All Hawaiian Laws and Constitutional principles not inconsistent herewith shall con- tinue in force until further order of the Executive and Advisory Councils." These Councils were granted by the Proclamation general legislative authority, which function they exercised. When, after the lapse of nearly a year, the final answer of the President of the United States was made that he would not again submit to the United States Senate the Treaty of Political Union with Hawaii which had been negotiated between President Harri- son and the Hawaiian Commissioners, the way seemed clear for the establishment of a more permanent form of government and one in which the people would have more of a voice. The term "Provisional," as applied to the Government, was objectionable, as implying that it was temporary in its character, and indicating to some minds that if the securing of stable government for these islands by means of political union with the United States was not immediately accomplished, it should dissolve and surrender the reins of government to the late Monarchy. No such view was entertained for a moment by the promoters of the movement. The establishment of a Republic was therefore the only alterna- tive. How should this be done? Two methods were suggested. The first, that of promulgating a constitution by the Executive of the Provisional Government, found a good many supporters. YALE LA W JO URNAL. The second course suggested, of submitting to a Convention the framing of a constitution, was followed. An act was passed by the Legislature of the Provisional Government (the Executive and Advisory Councils) on the i 5 th March last, calling for an Election by the people, which included native Hawaiians, of Eighteen Delegates to sit in Convention with the members of the Councils. The election was held; the Convention was convened on the 3oth of May last and concluded its labors on the 4 th July when the Constitution was proclaimed. No express power was given to the Convention to enact the Constitution when framed, and the interesting question arose as to what authority the Constitution should proceed from. The idea prevailed that since the Procla- mation of the i 7 th January, 1893, continued Hawaiian Laws and its Constitution in force, so far as they were consistent with the abrogation of the Monarchy, until otherwise ordered by the Councils, this body as the Legislative body of these islands should enact the Constitution as the fundamental law and thus displace the Consti- tution bf 1887. This was accordingly done; an Act was passed which enacted the Constitution as law. Ever since the overthrow of Monarchy the form of government and the particulars of a Constitution best suited to the needs of this community of mixed races and diverse education and interests had received the anxious thought of many men. A few had attempted rough drafts of parts of a Constitutioti. The Convention was soon to assemble and the question was asked, Should nothing be done in the way of preparation of a draft of a Constitution. If no draft was prepared in advance, the obvi- ous course would be to appoint a Committee at the opening of the Convention to prepare a draft to be submitted to the Conven- tion for discussion. This would consume much valuable time, and it was liable that this responsible duty would fall into the hands of persons unfitted for it. It was finally decided that Pres- ident Dole and his Cabinet should call in to their assistance a small number of gentlemen and prepare a draft of a Constitution which at the opening of the Convention was' to be placed at its disposal, as a scheme to be followed or not as it was advised. The President presented the matter so gracefully to the Convention at its opening that it readily asked for the result of his labors and the Constitution as prepared was the text upon which the Con- vention worked. Accordingly, in the latter part of April last, the President brought together in the "Gold-room" of the ex-palace some fifteen gentlemen, and sessions were held almost daily until THE CON_1SrIZTITION 01?"HAWAII. within a day or two of the 3 oth May, when the Convention was opened. Of these sixteen persons, including the President and four Ministers, ten were lawyers; ten were Hawaiian born, and the others were men of long residence in these islands. Of the sixteen, four were graduates of Yale; three Academic and one of the Law School. It should not surprise any one familiar with these facts that the Constitution revealed, as the New York Naion of August 2d, says, "1several interesting features which show that the framers had followed current discussion with intel- ligence," nd that "not d few articles are incorporated providing for what many reformers in this country [the U. S.] have con- tended would be highly desirable for us.,' The framers of the Constitution had access not only to all the Constitutions of the several States of the American Union but to those of many of the nations of Europe. Besides these they had, through correspondence, the advice of several well-known jurists and constitutional writers in the United States upon many impor-. tant questions. It would hardly be proper to name these gentlemen in this article. Many of their suggestions were valuable but the object of the framers of the Constitution for the Republic of Hawaii was not to construct an instrument ideally perfect, but to frame one that would fit the conditions of the people of these islands so as to ensure peace, security for life and property, and justice, and, generally speaking, "good government." And the crucial question was often asked, How will such a thing work ?-What will its effect be? For instance,-that women should have the suffrage, was believed by many to be theoretically right, but the majority felt that it would be unsafe in our hetero- geneous commuuity and so the suffrage was confined to males. The Constitution as finally promulgated may receive the criti- cism that it contains too much of merely statutory matter. A constitution should be comprised of statements of general principles not liable to require frequent change and for this reason constitutions are not easily amendable. But it must be remembered that our case differed widely from other States that are called upon to revise their constitutions or prepare new ones. Here the task was to provide for a complete change of the form of government from a limited Monarchy to a Republic; the bridge between the two being a Provisional Government of a Revolutionary character. In our case the constitution of the Executive and Legisla- ,tive branches of the government and the particulars of the fran- chise, of the registration of voters, etc., had to be carefully set YALE LAW JOURNAL. out in detail, in the Constitution, subjects more legitimately within the scope of statutory regulation. I shall comment briefly upon some of the peculiar features of our Constitution and especially those that differ from that of the United States. In preparing the draft of the Constitution the first question to be settled was, shall the Legislative authority be vested in one Chamber or in two? Those who remembered President Woolsey's lectures on "Lieber's Civil Liberty," would unhesitatingly, on theory alone, pronounce in favor of the bicameral system. But we had had in Hawaii a House of Nobles and a House of Repre- sentatives from x852 to x864,-sitting separately. And from 1864 to z892 a legislature of one body, consisting of Nobles and Repre- sentatives sitting together. The experience of forty years made it certain that for this country the Legislature should be of two Houses and it was so determined. The term of the office of President received much discussion by the framers, also in the Convention and out of it. Following the best line of thought upon this subject, and having in view the temptations to political wire-pulling on the part of office holders under a President to secure his election for a second term and thus retain the offices for themselves and their friends, the decis- ion was arrived at that the term of office of the President should be six years and he not be eligible to re-election for the term immediately following. Many members of the Convention pre- ferred that the term should be eight years and a vote to that effect passed the Convention-but it was, after further discussion, reconsidered, and the Constitution (Art. 24, Sees. i and 4) established the term at six years. We have no Vice-President. This office was considered unnecessary. The Senate could elect its own presiding officer, and thus save the salary of a Vice-President. But careful provis- ion is made in the Constitution (Art. 36), in case of the death, resignation, removal by impeachment or permanent disability of the President, that a Minister (pending an election for President) shall succeed to this office and act as President, in regular order- that is to say, the Minister of Foreign Affairs first, and in case of his disability or absence from the country, then the Minister of the Interior, and in like event the Minister of Finance, and the Attorney General. It might sound strange to republican ears to hear the Cabinet officers in a Republic called "Ministers" and not "Secretaries." THE CONSTITUTION OF HA WAII This was most earnestly considered, and the more dignified title of "Minister" was adopted because the Hawaiian people were familiar with this term, and to call them "Secretaries" would mean, in the vernacular, a mere "writer," the primitive meaning of the word "Secretary." Then, too, the Cabinet officers as responsible heads of Departments, with seats in the Legislature and only removable by the President with the consent of the Senate, are in fact "Ministers" and not mere "Secretaries" of the President.

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